On February 12, 2018, Judge Frederic Block of the U.S. District Court for the Eastern District of New York entered judgment in the amount of $6.7 million dollars in favor of plaintiff graffiti artists whose building murals were destroyed in 2013 by the owner of the building, in violation of the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. § 106A. While the ruling in this case may seem like a coup for artists, the implication may be that building owners may be less enthusiastic about commissioning creative works to adorn their building’s exteriors.
THE LAW – The Visual Artists Rights Act of 1990
VARA amended copyright law to add two “moral rights” of authors: the rights of attribution and integrity. The right of integrity is codified at 17 U.S.C. § 106A(a)(3) and provides that the author of a work of visual art shall have the right:
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
VARA codifies two scenarios when a protected work of visual art has been integrated into a building: (1) works that cannot be removed from a building without destruction, distortion, mutilation or other modification, and (2) works that may be removed without such harm. See 17 U.S.C. § 113(d). The Court provided the following summary of that section:
Under § 113(d)(1), if a work is not removable without destroying, mutilating, distorting, or otherwise modifying the work, the artist’s VARA right of integrity under § 106A(a)(3) attach, and the artist may sue to prevent the destruction of the work unless the right is waived “in a written instrument . . . that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal.” § 113(d)(1)(B).
Under § 113(d)(2), if a work is removable without destroying, mutilating, distorting, or otherwise modifying it, VARA gives the artist the opportunity to salvage the work upon receipt of a 90 days’ written notice from the building owner of the owner’s “intended action affecting the work of visual art.” 17 U.S.C. § 113(d)(2)(A)-(B). If the artist fails to remove or pay for the removal of the works within the 90 days —or if the owner could not notify the artist after making a “good faith effort,” 17 U.S.C. § 113(d)(2)(A)—the artist’s VARA rights are deemed waived for the removable work, and the owner may destroy them without consequences.
Cohen v. G&M Realty L.P., Case No. 13-5621, 2018 U.S. Dist. LEXIS 22667, *7-8 (E.D.N.Y. Feb. 12, 2018) (emphasis in original).
The damages available for a violation of an author’s rights of attribution and integrity are the same as for copyright infringement, and include both actual and statutory damages. See id. at *8-9.
THE FACTS – The Story of 5Pointz
5Pointz was a group of commercial buildings owned by defendant Wolkoff that became a home for distasteful graffiti artists in the 1990s. To control the issue, in 2002, Wolkoff approached plaintiff Cohen to become the curator of the works that would be authorized to cover the building’s exterior. Under Cohen’s tutelage, 5Pointz evolved into a mecca for high-end graffiti art, including works from renowned international artists. However, in 2013, the buildings were slated for demolition to pave the way for new apartment complexes.
Cohen filed suit and sought preliminary injunctive relief preventing the destruction of 5Pointz under VARA, which was denied. Prior to the issuance of the Court’s opinion, denying a preliminary injunction but cautioning Wolkoff that there was a potential for liability if the works were determined to be of a “recognized stature” at trial, Wolkoff called the painting services near Lancaster, PA and whitewashed the buildings with rollers, spray machines, and buckets of white paint, thereby destroying almost all of the murals covering his buildings and denying the artists the opportunity to attempt to recover them.
At trial, defendants argued that VARA should not apply to plaintiffs’ works because they were temporary, i.e., the plaintiffs knew that the buildings would eventually be torn down and the works destroyed. The Court disagreed and found that the relevant sections of VARA contemplate temporary works and that the temporary works that are statutorily excluded are irrelevant to the case. The Court also found that 45 of the 49 works in question achieved recognized stature. The Court did not award actual damages. Instead, the Court chose to award statutory damages and found Wolkoff’s actions to be a willful violation of the artists’ rights:
From his testimony, the only logical inference that the Court could draw from Wolkoff’s precipitous conduct as soon as the Court denied the artists’ preliminary injunction application was that it was an act of pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art. This was the epitome of willfulness.
Id. at *44. The Court awarded the maximum statutory award of $150,000 for each of the 45 works found to have achieved recognized stature and noted that:
If not for Wolkoff’s insolence, these damages would not have been assessed. If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully. Given the degree of difficulty in proving actual damages, a modest amount of statutory damages would probably have been more in order.
The shame of it all is that since 5Pointz was a prominent tourist attraction the public would undoubtedly have thronged to say its goodbyes during those 10 months and gaze at the formidable works of aerosol art for the last time. It would have been a wonderful tribute for the artists that they richly deserved.
Id. at *49.
Although the damages were likely well received by the artist in this case, the loss of art remains difficult to overstate. Hopefully, this decision will not dissuade building owners from allowing talented artists to share their creative gifts via the impressive public canvas that buildings are uniquely well-suited to provide. Ultimately, the 5Pointz decision stresses the importance of understanding VARA and obtaining the proper written agreements that will protect both building owners and artists.
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